AMAN-UL-ALLAH KHAN, J.---Appellants Nooruddin, Nasruddin sons of Abdul Majeed and Haji Raham Dil son of Muir Bakhsh alongwith Muhammad Azeem son of Haji Raham Dil and absconding accused Muhammad Zaman son of Haji Raham Dil were tried by Special Judge, S.T.A., Kalat at Mastung for the murder of deceased Kher Bibi wife of Nasruddin and daughter of Muhammad Azeem and Abdul Sattar son of Zareef Khan. The appellant Muhammad Azeem and Muhammad Zaman were tried in absentia and they were convicted vide judgment dated 12-12-2000 as follows;--
(i) Muhammad Azeem convicted under section 302(b), P.P.C. For death;
(ii) Muhammad Zaman convicted under section 302(b), P.P.C. Read with 109, P.P.C. To suffer life imprisonment.
(iii) Nasruddin convicted under section 302(b), P.P.C. Read with 109, P.P.C. On two counts and sentenced to imprisonment for life for two terms to run consecutively.
(iv) Appellant Nooruddin and Haji Raham Dil have been convicted under section 302(b), P.P.C. Read with 109, P.P.C. To suffer R.I. For life.
2. The prosecution case is that the complainant Abdul Wahab lodged report with Police Station Mastung on 20-5-1999 under section 302/109/ 342/34, P.P.C. Vide F.I.R. No,17 of 1999 with the averments that he is employed in the Court of Judicial Magistrate, Mastung and on the day of incident i,e, 20-5-1999, after performing his duties, at about 2-00 p.m. He came to the house of his father situated near Bus Stand Mastung and thereafter went to his own house situated at Karez North Mastung. His wife informed him that Kher Bibi wife of Nasruddin and daughter of Muhammad Azeem who got married a week earlier with Nasruddin has been brought by her husband to the house of her father with the allegations that on the night of marriage she was not found virgin and her husband suspected that she had illicit relations before her marriage. In the meanwhile his grandfather Yar Muhammad sent for him (complainant). He went to the house of his grandfather who informed him that Nasruddin is suspecting his brother Abdul Sattar of having illicit relationship with Kher Bibi. On hearing this he came out to find his brother, to report the matter to Police Station for his security. He left for his father's house where he did not find his brother and thereafter looked for him in the Bazar but could not find him. Thereafter, he immediately went to the house of Muhammad Azeem. After knocking the gate of the house of Muhammad Azeem he forcibly entered in and saw that his brother Abdul Sattar had been locked in a room who shouted from the window that he is innocent and has been falsely implicated and also saw that Kher Bibi was locked in another room. It is further stated that Muhammad Azeem asked him to enquire from Kher Bibi as to whether she had illicit relations with his brother or not. He asked Kher Bibi who informed him that she is innocent and she stated that in fact her husband Nasruddin is impotent and to cover his own weakness he has alleged a false allegation of Siah Kari. It is further alleged that at the relevant time in the house, Muhammad Azeem, Nasruddin, his brother Nooruddin and Muhammad Zaman were present and in the meanwhile, Muhammad Afzal, brother of Nooruddin and Nasruddin also came there and asked his brothers to leave as they had brought the matter to the notice of the heirs of Kher Bibi. Nasruddin while leaving the house gave a loaded kalashnikov to Muhammad Azeem and told him that it is up to him now whatever he wants to do. After that Nasruddin and his two other brothers left. Muhammad Azeem pushed him. (complainant) forcibly in another room and locked him from outside and in the meanwhile he heard burst of Kalashnikov and further stated that Muhammad Azeem and Muhammad Zaman fired at his brother and Kher Bibi. The womanfolk of the house let him out. When he came out he brought his brother in an injured condition to the hospital who succumbed to the injuries whereas Kher Bibi died on the spot. After usual investigation of the case, challan was submitted. Initially appellant Nasruddin was arrested and charge was framed against him on 17-11-1999. Thereafter, the appellants Nasruddin and Haji Raham Dil were arrested and charge against them was framed on 20-6-2000 whereas appellant Muhammad Azeem and MuhammadZaman were tried in absentia and after hearing both the sides, the learned Special Judge S.T.A., Kalat at Mastung convicted the appellants vide impugned judgment dated 12-12-2000 in the terms mentioned above.
3. Appellants Nasruddin and Nooruddin have filed Criminal Appeal No,386 of 2000, Haji Raham Dil has filed Criminal Appeal No,4 of 2001 and Muhammad Azeem and Muhammad Zaman had filed Criminal Appeal No,8 of 2001 wherein it was prayed that their appeal be heard in absentia.
However, during the pendency of the appeal, appellant Muhammad Azeem was arrested; hence by this common judgment we propose to dispose of the afore-mentioned appeals.
4. Mr. Habib Jalib. Advocate appearing on behalf of appellants Haji Raham Dil. Muhammad Azeem and Muhammad Zaman submitted that during the pendency of the appeal, the legal heirs of the deceased Kher Bibi and Abdul Sattar have entered into compromise and submitted compromise deed duly attested by the Superintendent Jail Mach and Councilor Union Council Karez North District Mastung regarding each of the appellants.
5. Mr. M. Salahuddin Mengal, Advocate appearing on behalf of appellants Nasruddin and Nooruddin stated that no compromise was arrived at between the appellants with the legal heirs of the deceased. However, he argued the matter on merits.
6. Mr. Akhtar Zaman, learned Additional Advocate-General appeared for the State.
7. Muhammad Aslam, brother of deceased Kher Bibi and Raj Bibi, mother of deceased Kher Bibi and Abdul Wahab, Abdul Salam, brothers of deceased Abdul Sattar, Zaref Khan father and Murad Bibi appeared and verified the contents of the compromise effected with the accused persons and further stated that they have forgiven the accused persons in the name of the Almighty Allah and have also forgone the Diyat amount and further stated that if the appellants are acquitted of the charge, they have no objection and further stated that they have not arrived at compromise with Nasruddin and Nooruddin; however, stated that they did not play any active part in the commission of the offence.
8. Mr. Habib Jalib, Advocate for the appellants Muhammad Azeem and Haji Raham Dil contended that since the matter has been patched up with the legal heirs of the deceased as offences alleged are compoundable, thus they are entitled to be acquitted of the charge. He further stated that as far as the appeal of absconding appellant Muhammad Zaman is concerned, he did not press the same and stated that the applicant Muhammad Zaman would appear before the trial Court.
9. Mr.M. Salahuddin Mengal, Advocate for appellants Nasruddin and Nooruddin stated that as far as the prosecution evidence is concerned, no overt act has been attributed to the said appellants and besides the legal heirs of the deceased also confirmed that no active role was played by them rather they left the place of incident before the actual killing took place; thus argued that they are also entitled to be acquitted of the charge.
10. Mr. Akhtar Zaman, learned Additional Advocate-General for the State contended that though the legal heirs of the deceased persons are competent to enter into compromise with the appellant but vehemently opposed the acquittal of the appellant on the basis of the compromise.
He further contended that under section 345, Cr.P.C. Compromise can only be accepted with the leave of the Court. However, this Court under section 311, P.P.C. Can still punish the appellants under Tazir. The learned A.A.-G. Further argued that since false allegation of Siah Kari was alleged against the deceased persons and thereafter they were brutally murdered; thus this Court can impose punishment under the said section by way of Tazir.
11. The arguments advanced by the learned Addl. A.-G. Were opposed by Mr. Habib Jalib, Advocate who stated that after compromise the appellants were entitled to acquittal. However, he did not advance any arguments on the merits of the case.
12. Adverting to the arguments of Mr. Akhtar Zaman, learned Addl. A.-G. We deem it proper to refer to subsections (2) and (7) of section 345, Cr.P.C. Which is applicable in the instant case which reads as under:-- "(2) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in third column of that table.
(7) No offence shall be compounded except as provided by this section."
Perusal of the above-quoted section would make it clear that permission of the Court for compounding of the offence is mandatory and no offence mentioned in subsection (2) shall be compounded except as provided under the said section i,e, permission of the Court is prerequisite for compounding of the offences mentioned in that subsection and if the Court withholds permission for compounding the said offences, then in such case provisions of section 311, P.P.C.
Shall come into picture whereby discretion has been conferred on the Court to impose punishment on the offender under Tazir despite compromise arrived at between the heirs of the deceased and appellants. In this regard reference is made to the following two cases:--
(i) Muhammad Akbar and another v. The State PLD 1996 Quetta 56, and
(ii) Muhammad Nazir alias Jeera v.The State PLD 2001 Lahore 212. In the former case, Mr. Justice Javed Iqbal, Judge of Balochistan High Court, as he then was, observed as follows:- "The above reproduced. Sections 345(2) and 345(7), Cr.P.0 would make it clear that permission of the Court for compounding of the offence is mandatory and no offence 'shall' be compounded except as provided by section 345, Cr.P.C. Meaning thereby that permission of the Court is a mandatory prerequisite before any offence is allowed to be compounded. The Court of competent jurisdiction may refuse to grant such permission and in such an eventuality section 311, P.P.C.
Comes into picture whereby discretion has been conferred to award conviction if circumstances of the case so justify and punish an offender against whom the right of Qisas was waived or compounded. In absence of section 311, P.P.C. The provisions as contained in section 345(2) and (7) of Cr.P.C. Would become redundant and it could never be the intention of law giver as sections 311, P.P.0 and 345, Cr.P.0 are interdependent, therefore, cannot be read separately. The upshot of the above discussion would be that a Court may exercise its discretion and award punishment by way of Tazir under section 311,P. P.C. " In the latter case, Mr. Justice Khaltl-ur-Rehamn Ramday, Judge Lahore High Court (as he then was) has made the following observations:-- "14. What is thus deducible from the above-noticed provisions is that after a compromise has been reached between all the heirs of a deceased person and the offender, the Courts, of law are not permitted to blindly act upon the said compromise and to acquit the culprit. The Courts of law are expected to consider all the attending facts and circumstances of the case and then to decide whether in the given situation the Court should or should not grant permission for the compounding of the offence. The Courts are also obliged to decide whether the case falls within the ambit of the provisions of section 311, P.P.C. And whether the offender despite the compromise, deserved to be punished by way of Tazir under the said provisions of law."
13. The prosecution case in a nutshell is that deceased Kher Bibi got married to appellant Nasruddin one week prior to the incident and it was alleged by Nasruddin that deceased Kher Bibi was not virgin on the night of the marriage and after one week of the marriage he brought the deceased to the house of his father and the said allegation was denied by both the deceased persons rather the deceased Kher Bibi stated that she is innocent and has been falsely implicated in the case of so-called Siah Kari as her husband Nasruddin is impotent and to cover his own weakness he had concocted the said story. Thereafter, instigating' the father of the deceased namely Muhammad Azeem and her uncle Muhammad Zaman, who committed murder of both the deceased persons.
It is pertinent to mention here that no evidence of Saih Kari of the deceased persons was produced nor any enquiry was made to this effect but only on bald allegations made by the appellant Nasruddin, murder of the deceased Kher Bibi and Abdul Sattar was committed in a brutal and shocking manner. As observed hereinabove, no proof regarding illicit relationship between the deceased persons before the marriage of Kher Bibi was brought on record and only conspiracy was hatched to get rid of the deceased on the allegation of Siah Kari on the pretext of so-called honour (Ghairat) the said murders were committed in a brutal and shocking manner which comes within the ambit of Fisad-fil-Arz as envisaged under section 311, P.P.C.
14. Adverting to the arguments of Mr. M. Salahuddin Mengal, Advocate that no over act was attributed to appellant Nasruddin and Nooruddin and they had left the house of appellant Muhammad Azeem before the commission of the offence; Mr. Akhtar Zaman, learned Addl. A.-G.
Opposed the acquittal of Nasruddin on the ground that he had concocted the false story by declaring the deceased persons as Siah Kar and it was at his instigation that the' deceased persons were done to death by the appellant Muhammad Azeem and appellant Muhammad Zaman. The contention of Mr. Akhtar Zaman, learned Additional Advocate-General has substance as observed hereinabove. It was Nasaruddin the husband of deceased Khair Bibi on whose instigation the matter was flared up and it was at his behest the deceased persons lost their lives.
In view of above discussion the compromise between legal heirs of deceased Khair Bibi and Abdul Sattar arrived at with appellants Muhammad Azeem and Raham Dii is accepted but keeping in view the aforementioned circumstances under which the deceased were murdered, we are inclined to exercise powers under section 311, P.P.0 and convict the appellant Muhammad Azeem under Tazir to suffer R.I. For 14 years. As the offence was abetted by the appellant Nasruddin on the pretext of false allegation of Siah Kari, his sentence of life imprisonment is reduced to that of fourteen (14) years' R.I. Benefit of section 382-B, Cr.P.0 is also extended to them. As the legal heirs of deceased had compromised the matter with appellant Raham Dil also but even otherwise no incriminating evidence has come on record against him, therefore, he is acquitted of the charge.
As far as appellant Nooruddin is concerned though no compromise was effected between him and the legal heirs of deceased persons but the prosecution has failed to prove the case against him, therefore, he is acquitted of the charge. Thus, the appellant Dil and Nooruddin be released forthwith if not required in any other case of the prosecution.
15. Appeal stands disposed of in the above terms.